Am I abel to place a Federal claim against a town court for violating my Constitutional rights?

Question

At arraignment, the Judge took my NY license for suspension without me having an attorney present. Reading DWI law, this is illegal. It violates both my state and federal constitutional right of due process and no counsel at court proceeding; (5th and 6th Amendments) Any NY attorney please, please advise!!!!

Answer 1

File for writ of error and correct the judges decision. furthermore, file a motion for contempt on the judge who issued the judgment.

Second, sue the state for lack of jurisdiction. A state cannot process any claims unless it has provided jurisdiction. If a cop stopped you, then they will not be able to provide jurisdiction. In fact, no law exist unless you are already a felon.

Case law for jurisdiction:

"Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026.

"There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d 215.

"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F2d 416.

"Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Lantana v. Hopper, 102 F2d 188; Chicago v. New York, 37 F Supp 150.

"A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property." Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.

"Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio." In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.

"Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term." Dillon v. Dillon, 187 P 27.

"A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance." Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.

"A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.

"Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739.

"the fact that the petitioner was released on a promise to appear before a magistrate for an arraignment, that fact is circumstance to be considered in determining whether in first instance there was a probable cause for the arrest." Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685.

And, you may find this interesting as well:

"An action by Department of Motor Vehicles, whether directly or through a court sitting administratively as the hearing officer, must be clearly defined in the statute before it has subject matter jurisdiction, without such jurisdiction of the licensee, all acts of the agency, by its employees, agents, hearing officers, are null and void." Doolan v. Carr, 125 US 618; City v Pearson, 181 Cal. 640.

"Agency, or party sitting for the agency, (which would be the magistrate of a municipal court) has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is highly penal in nature, and should not be construed to include anything which is not embraced within its terms. (Where) there is no charge within a complaint that the accused was employed for compensation to do the act complained of, or that the act constituted part of a contract." Schomig v. Kaiser, 189 Cal 596.

"When acting to enforce a statute and its subsequent amendments to the present date, the judge of the municipal court is acting as an administrative officer and not in a judicial capacity; courts in administering or enforcing statutes do not act judicially, but merely ministerially". Thompson v. Smith, 154 SE 583.

"A judge ceases to sit as a judicial officer because the governing principle of administrative law provides that courts are prohibited from substituting their evidence, testimony, record, arguments, and rationale for that of the agency. Additionally, courts are prohibited from substituting their judgment for that of the agency. Courts in administrative issues are prohibited from even listening to or hearing arguments, presentation, or rational." ASIS v. US, 568 F2d 284.

"Ministerial officers are incompetent to receive grants of judicial power from the legislature, their acts in attempting to exercise such powers are necessarily nullities." Burns v. Sup. Ct., SF, 140 Cal. 1.

"The elementary doctrine that the constitutionality of a legislative act is open to attack only by persons whose rights are affected thereby, applies to statute relating to administrative agencies, the validity of which may not be called into question in the absence of a showing of substantial harm, actual or impending, to a legally protected interest directly resulting from the enforcement of the statute." Board of Trade v. Olson, 262 US 1; 29 ALR 2d 1051.

You could probably sue the judge on Title 18, Section 242.

Also, none of this can be done if this was NOT done in a court of record. If it hasn't then contact me and i can help you further.

Answer 2

That Daevean guy is a nut.  He posts that same c**p in response to every question.  He is a Constitutional Law Fictionalist.

You do not have a right to have an attorney present when you lose your license.

My advice is that you learn how to drive within the law.

Answer 3

Judges have the power to do whatever they think is best and they have wide powers to enable this.

Read your local "courts of Justice Act" or the equivalent in your state and you'll see.

A federal suit will be laughed out of Court.

Answer 4

I don't know what "DWI law" you are reading, but I can tell you with the certainty of fact that you do not have a constitutional right to have an attorney present at a license suspension hearing under either the US Constitution or that of any of the 50 states, including, if not especially, New York.  

Oh, and by the way, the Constitution's two due process clauses are in the 5th and 14th Amendments.  The right to counsel applies only in criminal cases, and even there it can be, and often is, waived.  It has been established for longer than I have been alive that the right to counsel does not extend to licenses.  And I am pretty old.

My advice is to look for an argument that does not set you up for Rule 11 sanctions, as this one surely does.

Best of luck.

Edit:  In considering the wisdom of the "Constitutional Law Expert" who (if he is to believed) has yet to graduate law school, you might want to consider the following:  it has been settled law since Pennoyer v. Neff, 95 U.S. 714 (1877), that a state has jurisdiction to rescind a license that it has granted.  Since EVERY first year law student reads Pennoyer v. Neff, I have to question the bona fides of our self-professed "expert."

Answer 5

The Professor got it right.

The other two answers are horribly wrong.  Especially the answer of that "Constitutional Law Specialist."  That fellow might very well specialize in psycho-whacko constitutional self-flagellation, but the Constitution is interpreted by the Supreme Court, and they have held our "Specialist" to be dead wrong for well over a century.  The quotes he offers are COMPLETELY out of context.